CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ Key words: l iberty, the natural right to be free, the right of the child to liberty and security, deprivation or restriction of personal liberty, administrative detention of the child. On the Author: Dalibor Jílek, professor of Public International Law, Brno Institute of Interdisciplinary Studies (Czech Republic), Pan-European University in Bratislava (Slovakia); former member of the Advisory Committee of the Framework Convention for the Protection of National Minorities (1998 – 2002; 2006 – 2010), member of the European Commission against Racism and Intolerance (2002 – present), Council of Europe; expert for human rights, Organisation for Security and Co-operation in Europe (2010 – present), member of the Permanent Court of Arbitration, The Hague. 1. Objective Liberty in the legal sense can mean the conjunction between positive permission (to do something) and negative permission (to refrain from the same action). However, in this paper, liberty will not be viewed through just the one normative mode of permission. The basis for an analysis of the child’s rights to liberty and administrative detention is the internal triadic relationship between the person exercising freedom, deprivation of liberty and choice. The components of the triadic relationship are to have the following functions: the first function is organizational – the three components that have been referred to will organize the internal form of this paper, and also have an influence on its content; the second function is comparative – the components are used as comparative standpoints for an analysis of Hart’s thesis on the natural right to be free, the right of each individual to liberty and security under the European Convention on Human Rights and the right of the child to liberty under the Convention on the Rights of the Child. This paper has two overlapping objectives. The primary objective of the paper is to portray the normative evolution of children’s rights to liberty within a comparative context, while evaluating the administrative detention of children within the immigration situation comes under a separate objective. This paper presents a line of argument justifying prohibition of the administrative detention of children in view of their best interests. 2. Hart’s thesis on the natural right to be free H. L. A. Hart puts forward the thesis that we have at least one natural right: 1 the equal right of all men to be free . 2 This right involves a binary structure of correlative and mutually conditioned components. The first component of this comprehensive right is the right to forbearance on the part of all others. All others should refrain from using coercion or restraint on those possessing this right. The second component is to be free to perform any 1 HART, H. L. A., Natural Rights: Bentham and John Stuart Mill. In: TEN, C. L. (ed.), Theories of Rights , Aldershot: Ashgate, 2006, pp. 163-188. 2 HART, H. L. A., Are There any Natural Rights? T he Philosophical Review , 1955, Vol. 64, No. 2, p. 175.

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